United States District Court, D. Massachusetts
DIPING Y. ANDERSON, Plaintiff,
MEGAN J. BRENNAN, Postmaster General, Defendant.
MEMORANDUM AND ORDER
B. Saris Chief United States District Judge
a bench trial, the Court concluded that the Postal
Service's termination of Anderson from her position as a
Postal Police Officer (“PPO”) was retaliatory, in
violation of Title VII. Anderson v. Brennan, No. CV
14-13380-PBS, 2017 WL 1032502 (D. Mass. Mar. 16, 2017).
parties' subsequent motions, the Court reconsidered the
original remedy of reinstatement and ordered both parties to
supplement the record with evidence on the appropriate amount
of front pay. Anderson v. Brennan, No. CV
14-13380-PBS, 2017 WL 2380166, at *7 (D. Mass. June 1, 2017).
The Court also allowed Anderson to file a petition for
attorney fees. Id. at *8.
now moves for front pay (Docket No. 151) and attorney fees
(Docket No. 150). The Postal Service opposes award of any
front pay and argues, in the alternative, that any front pay
award should be subject to various offsets (Docket No. 149).
Court DENIES Anderson's motion for front pay
(Docket No. 151). The Court ALLOWS Anderson's
motion for attorney fees (Docket No. 150).
Front Pay (Docket No. 151)
seeks front pay for the next eight years plus lost pension
benefits and increased health insurance costs, offset by
income from her alternative employment.
Postal Service argues that Anderson is not entitled to any
front pay. It argues that it is error for the district court
to allow supplementation of the record on front pay at this
stage of the proceedings, that Anderson has been adequately
compensated by back pay and compensatory damages, that
Anderson failed to use reasonable efforts to secure alternate
employment, and that she has reached the national average
retirement age for PPOs.
Court begins with the Postal Service's argument that the
Court ought not allow supplementation of the record on front
pay. In Lussier v. Runyon, the district court
ordered post bench trial supplemental briefing on the amount
of the disability payments that an unlawfully discharged
plaintiff would receive in the future. 50 F.3d 1103, 1113
(1st Cir. 1995). The district court reduced its front pay
award based on the new information. Id. The First
Circuit vacated the judgment, holding that “once the
record is closed, a district court, absent waiver or consent,
ordinarily may not receive additional factual information of
a kind not susceptible to judicial notice unless it fully
reopens the record and animates the panoply of evidentiary
rules and procedural safeguards customarily available to
litigants.” Id. at 1105-06. The First Circuit
warned that reopening the record for additional evidence
requires “the standard prophylaxis that generally
obtains at trial, ” including “the right to
object to evidence, the right to question its source,
relevance, and reliability, the right to cross-examine its
proponent, and the right to impeach or contradict it.”
Id. at 1115 & n.16.
is no information in the parties' latest filings of which
the Court can take judicial notice. If there were a legal or
standard retirement age for PPOs, that would be the kind of
information that would have aided the Court's
determination of the front pay award while also being
judicially noticeable. However, the parties' filings
suggest that there is no such Postal Police policy. Rather
than fully reopening the evidentiary record, as
Lussier would require, the Court elects to disregard
the post-trial evidence submitted by both parties on the
appropriate amount of front pay. Instead, the Court will rely
solely on the original bench trial record.
trial evidence on the appropriate remedy was sparse. The only
relevant evidence proffered by Anderson was an exhibit
showing her 2012 total compensation, which was $101, 987 when
accounting for the value of benefits. Anderson, 2017
WL 1032502, at *17. The Postal Service failed to enter any
evidence on mitigation (as was its burden, id. at
*17 n.15), but the Court took as a concession Anderson's
statement in her post-trial submission that she made a total
of $82, 797 from her alternative employment over 3.3 years.
Id. at *17.
was no trial evidence on the length of time for which it
would be appropriate to award front pay. The only relevant
information available to the Court is that Anderson is
sixty-two years old. There was no trial evidence on how long
Anderson intended to remain a PPO if not for her termination,
and there was no trial evidence on what age PPOs tend to
Court must exercise caution in determining the appropriate
amount of front pay. “An award of front pay,
constituting as it does, an estimate of what a plaintiff
might have earned had s/he been reinstated at the conclusion
of trial, is necessarily speculative.” Cummings v.
Standard Register Co., 265 F.3d 56, 66 (1st Cir. 2001)
(quoting Kelley v. Airborne Freight Corp., 140 F.3d
335, 355 (1st Cir. 1998)). “[T]he greater the period of
time upon which a front pay award is calculated in a case
involving an at-will employee the less likely it is that the
loss of future earnings can be demonstrated with any degree
of certainty or can reasonably be attributed to the illegal
conduct of the employer.” Id. (quoting
Conway v. Electro Switch Corp., 523 N.E.2d 255, 257
(Mass. 1988)). As such, “awards of front pay are
discretionary.” Johnson v. Spencer Press of Me.,
Inc., 364 F.3d 368, 380 (1st Cir. 2004); see also
Lussier, 50 F.3d at 1108 (“[F]ront pay, within the
employment discrimination universe, is generally equitable in
nature. . . . Title VII . . . afford[s] trial courts wide
latitude to award or withhold front pay according to
established principles of equity and the idiocratic
circumstances of each case.”).
Anderson had full opportunity to enter trial evidence on the
appropriate amount of front pay but failed to do so, the
Court finds that no front pay award is warranted. See
Barbour v. Merrill, 48 F.3d 1270, 1279 (D.C. Cir. 1995)
(“The plaintiff bears the initial burden of providing
the district court ‘with the essential data necessary
to calculate a reasonably certain front pay award, '
including ‘the amount of the proposed award, the length
of time the plaintiff expects to work for the defendant, and
the applicable discount rate.'” (quoting
McKnight v. Gen. Motors Corp., 973 F.2d 1366, 1372
(7th Cir. 1992)); see also Bruso v. United Airlines,
Inc., 239 F.3d 848, ...